HARAK SINGH Vs. KAILASH SINGH

JUDGEMENT

(1.) In the suit which is the subject-matter of this appeal the plaintiffs asked for A declaration that the deed of gift dated 30-3-1949, executed by defendant No. 2, Musammat Deosunder Kuer, widow of Rambarat Singh, in favour of defendant No. 1, Kailash Singh, was not valid beyond the lifetime of the widow and was not binding upon the plaintiffs, who are the next reversioners. The plaintiffs claimed to be the next reversioners to the estate of Rambarat Singh and alleged that defendant No. 1, in whose favour the gift was made, was the sister's son of Deosunder Kuer. The suit was contested by defendant No. 1, who alleged that the plaintiffs were not the next reversioners and that defendant No. 1 himself was the next reversioner, being the sister's son of Rambarat Singh. The learned Subordinate Judge dismissed the suit, firstly on the ground that defendant No. 1 was the sister's son of Rambarat Singh and, therefore, the plaintiffs were not the next reversioners to the estate of Rambarat Singh. The Subordinate Judge, therefore, held that the suit was not maintainable and dismissed the suit.

(2.) The appeal was in the first instance heard by Sinha and Untwalia, JJ. It was argued on behalf of the plaintiffs, who presented the appeal, that in cases where the next reversioner was unwilling or suffered from some disability to institute a suit, the reversioner who came next was entitled to bring 4 suit for possession. The learned Judges accepted the contention and took the view that defendant No. 1, though the next reversioner, cannot bring a suit for setting aside the alienation in his own favour and, therefore, the reversioners who came next were entitled to bring the suit. It was argued on behalf of the respondents that there has been a revolutionary change in the Hindu law by the passing of the Hindu Succession Act of 1956 (Act XXX of 1956), and in view of the provisions of Section 14 of that Act the limited estate of the Hindu widow had become an absolute estate, even in the hand of the alienee, and so the plaintiffs cannot get a declaration that the deed of gift dated 30-3-1949, executed by the Hindu widow was not valid beyond her lifetime. In support of this argument Counsel on behalf of the respondents relied upon the decisions of this Court in Ram Ayodhya Missir v. Raghunath Missir, 1956 BLJR 734 : ((S) AIR 1957 Pat 480) (A), Mt Janki Kuer v. Chhathu Prasad, (S) AIR 1957 Pat 674 (B) and Ramsaroop Singh v. Hiralall Singh, 1958 Pat LR 71: (AIR 1958 Pat 319) (C). The argument addressed on behalf of the appellant was that Section 14 of Act XXX of 1956 had no application to a case where a Hindu widow had made a complete and out and out transfer of the property and in such a case a suit by a reversioner for a declaration that a certain transfer made by the widow before the Act came into force was invalid and not binding upon the reversioner was maintainable. Sinha and Untwallia, JJ. have agreed with the argument addressed on behalf of the appellant. The learned Judges doubted the correctness of the decisions of this High Court in 1956, BLJR 734: ((S) AIR 1957 Pat 480)(A), AIR 1957 Pat 674 (B) and 1958 Pat LR 71: (AIR 1958 Pat 319) (C). The learned Judges thought that these decisions required further consideration and the question at issue should be examined by a larger Bench.

(3.) Accordingly the question of law referred to the Full Bench is: